The Weekly Round-up: Supreme Court to rule on indyref2, pandemic WhatsApps, and protection for pupils

22 July 2022 by Matthew Johnson

In the news

The UK Government has urged Supreme Court justices not to hear the Scottish government’s request for a ruling as to whether it has the power to hold ‘indyref2’ (a proposed second Scottish independence referendum). The request was referred to the UKSC by Lord Advocate Bain, who was not prepared to sign off on the independence referendum bill without a ruling which acknowledges the necessary power to do so. The UK Government has been expressive in its “clear view” that the bill would be beyond the competence of the Scottish Parliament, and that the matter is too “premature” for justices to rule on it. The case is currently in the hands of Lord Reed. If the Scottish Government wins the case, Nicola Sturgeon has indicated that the bill would be introduced promptly so as to allow the vote to take place before October 2023.

The Information Commissioner’s Office has reprimanded the Department of Health for the use of WhatsApp and private emails during the pandemic. The use of these cryptic platforms has meant that information regarding the handling of the pandemic has been lost. The issue was brought before the courts in April, where the claim was dismissed and the practice held to be lawful. This was because the use of such channels of communication did not in themselves breach the Freedom of Information or data protection rules, because sufficient controls were in place to allow the information to be retrieved upon request. The ICO investigation has discovered, however, that “such controls were lacking”. As a result, the Department of Health has been formally required to improve its communications operations so that “public authorities remain accountable to the people they serve”.

In other news

• Schools across the UK have been advised to assess and balance the risk of a potential strip search on a pupil before calling the police. The new advice has been issued following the treatment of ‘Child Q’, a 15-year-old girl who was strip searched without an appropriate adult in 2020, having been wrongly accused of carrying cannabis. The guidance advises that all other ‘less invasive’ approaches must have been exhausted before triggering a possible strip search. It is hoped that this will help to protect pupils’ physical and mental wellbeing.

• Permission has been granted to the Fire Brigades Union to challenge the Government’s reduction in the value of new pension schemes for firefighters. The grounds will be: (i) that the reduction breaches commitments made in 2015; (ii) that it contravenes the purpose of the cost control mechanism; and (iii) that it discriminates against younger scheme members.

In the courts

In LM (Albania) v Secretary of State for the Home Department [2022] EWCA Civ 977, the Court of Appeal dismissed an appeal against the dismissal of a judicial review claim brought to quash the negative Conclusive Grounds decision made by the Home Secretary. The appellant claimed to be a victim of trafficking, and brought 3 grounds of appeal: (i) the judge erred in accepting that the appellant’s account could be rejected on the grounds of her admitted dishonesty without considering the reasons for such dishonesty; (ii) the Home Secretary was wrong to attribute the appellant’s PTSD to causes other than trafficking without expert evidence; and (iii) the judged failed to apply anxious scrutiny to the appellant’s case and to consider every supporting factor. The appeal was dismissed on all grounds: central to the appellant’s case was that she was a victim of trafficking, and there was not sufficient evidence to show this. This coupled with her admitted dishonesty and inconsistencies, there was no basis for setting aside the Conclusive Grounds decision.  

In CK (A Child: Fact-Finding) [2022] EWCA Civ 952, the Court of Appeal dismissed an appeal brought by the mother of a young boy against a finding that she inflicted serious physical injuries on the child. There were 2 overarching contentions: (i) the judge was wrong to conclude that the injuries were inflicted non-accidentally; and (ii) if the injuries were inflicted, the judge was wrong to identify the mother as the perpetrator. An important consideration in the fact-pattern was that during a period when the boy was unable to walk, he sustained 4 fractures for which there are no explanations. The Court found that the judge made an evaluation of the evidence which they were entitled to make, and therefore the ruling was upheld.  

Elsewhere on the UKHRB

• Rosalind English comments on the High Court case of Jennings v Human Fertilisation and Embryology Authority

• Lucy McCann comments on the Supreme Court case of Basfar v Wong.